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Circumcision and the Law

General disclaimer applying to the whole of this page
The information posted here should not be considered to be legal advice and is not intended to replace consultation with a qualified legal professional.

It is intended only to stimulate discussion about legal issues relating to circumcision, not as a formal point of reference.

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Australia, including the Aboriginal peoples

As a matter of generality, male circumcision is legal throughout Australia. However, there were moves in Tasmania back in 2009 to restrict the circumcision of male children on parental initiative. These have not become law.

Both state and Commonwealth laws can apply to the matter. Public hospitals are the responsibility of the state governments. It has been widely claimed (even in Wikipedia) that the various state governments have made circumcision illegal in public hospitals. This is nonsense, they have merely mandated that prophylactic circumcision will no longer be free. The arguments for this were entirely based on cost-cutting - the state should not pay for a discretionary procedure. However there is still a Medicare rebate for infant circumcision, though it is unlikely to cover the full cost. (Medicare is the Commonwealth-run universal health insurance system.) Australian law is largely based on the principles of British law, though some states have Common Law (like England), others do not (like Scotland). However, unlike England where medical consent transfers from parent to child at age 16, the age boundary in Australia is 18. However, as in Britain (below) individuals under the age of formal consent can seek confidential medical treatment as soon as they reach an age to comprehend the issues involved, without having to wait until formal majority is attained. For more detail of this in the Australian context, see the FindLaw Australia website.

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The Republic of Ireland became wholly independent in December 1921 and is the subject of a separate entry below. The remaining parts of the British Isles are not homogeneous. Those wishing to explore further the complex constitutional structure linking the various parts of the British Isles should look elsewhere; it is beyond the scope of this website. Suffice it to say here that, apart from Éire, there are seven legislatures, seven executive administrations and six separate legal systems.

All administrative and some legislative issues relating to health have been devolved to the Scottish Parliament and to the National Assemblies of Wales and Northern Ireland. Additionally, the Isle of Man, Jersey and Guernsey each have their own separate jurisdictions. As at October 2009 there are no known divergences between these separate legal systems in respect of male circumcision but it should be noted that the potential for variation in the future does exist.

Age of Consent and the matter of  ‛Gillick Competence’.
It had long been the case that, in the UK, the matter of consent to medical treatment passed from parent to child at the age of 16. This was so even pre-1969 when the voting age and the age of marriage without parental consent were both 21. Until 1986 the perceived wisdom was that a parent or legal guardian decided whether or not a boy under 16 should be circumcised whereas a young adult 16 years of age or older, if uncircumcised, took for himself any decision to become circumcised.

In 1986 this was overturned by case law that involved a failed attempt by one Victoria Gillick, a mother of ten children, to prevent the Department of Health and Social Security from giving the contraceptive pill to under-age girls without parental consent. The judgement in Gillick v West Norfolk and Wisbech Area Health Authority changed not only the consent rules relating to contraception in respect of under-age sex but also the whole matter of a minor’s consent to medical treatment. The post-1986 situation is best summed up by the following quote from the judgement of the late Lord Scarman* in the Gillick case:
[P]arental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child … as a matter of law, the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

Legal reference:  Gillick v West Norfolk and Wisbech Area Health Authority [1986], AC 112, pp.184, 188-189.

* Leslie George Scarman, Baron Scarman of Quatt, lawyer, born July 29 1911, died December 8 2004. Called to the Bar in 1936, he became a QC in 1957, a High Court judge in 1961, a Lord Justice of Appeal eight years later, and a Lord of Appeal in Ordinary in 1977.
Authoritarian parents, minded to micro-manage their offspring until the day they leave the nest, would do well to think long and hard about the very wide implications of Lord Scarman’s words. The Gillick Test of Competence has now been extended through other case law to include non-medical matters; a competent child’s decision overrides parental wishes even if the age of majority has not been reached. Like it or not, this is the legal situation and has been for the best part of a generation. The concept of ‛Gillick Competence’ has also been imported into other legal systems based upon the fundamental concepts of English Law.

There remains some doubt as to whether the right to obtain treatment is paralleled by a right to refuse it. In the above quote, Lord Scarman said “...whether or not their minor child...”. Some sources confidently assert that no such parallel right of refusal derives from Gillick (for example Lawteacher), but this appears to ignore the possibile existence of a general right of refusal deriving from the case Sørensen & Rasmussen v Denmark, 2006, in the European Court of Human Rights. In the ECHR case the subject area was Article 11 in relation to trade union membership; what has yet to be tested is whether the principle behind that judgement has wider application. If a right to choose something exists, must that right always be interpreted as carrying with it the right to refuse the same choice? It is a moot point. If ever a case concerning a child’s attempted refusal of medical intervention were to reach the European Court, the judgement would have effect across all 47 member states of the Council of Europe.

Medical Ethics.
In the UK, professional guidelines relating to non-therapeutic circumcision require consent by all those having Parental Responsibility in law, not just the consent of one of them. The BMA also recommends that a competent child’s expressed wish not to be circumcised should, on the grounds of medical ethics, veto a parental wish that the boy be circumcised in the absence of medical need. Whether one agrees or disagrees with the British Medical Association on these issues isn’t the point. For practical purposes doctors are bound by the BMA guidelines because they coincide with the policy of the General Medical Council, the statutory diciplinary body. The GMC having a UK-wide remit, this restriction also applies in Northern Ireland. By this means the medical profession have in effect created their own law, by-passing the normal democratic and common law processes. The prevailing view within the profession seems to be that a boy aged 8 is competent to refuse non-therapeutic circumcision.

You are invited to download a copy of the British Medical Association’s publication The law and ethics of male circumcision (The download is a .pdf file, 120kB).

Criminal law.
There is no specific legislation in the UK relating to male circumcision; such criminal cases as arise tend to fall into the category of ‛Assault causing actual bodily harm’. There is little doubt concerning the validity of consent to a ritual, non-medical circumcision freely given by an adult. See Regina v Brown (Anthony) [1994] 1 AC 212 at 231, [1993] 2 All ER 75 at 78-79. This criminal case concerned a number of sado-masochistic men who were convicted of assaults upon each other, notwithstanding that each had consented to the assaults in question - but these assaults were not circumcisions. In judgement, Lord Templeman said:
In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.
This is clearly ‛obiter’, a comment made by way of an aside not based upon the facts of the case. As such, it does not create a binding precedent in respect of circumcision - only guidance.

Not every case in the lower courts (or even in the High Court) generates a formal law report, so citation of precedents becomes problematic. Wikipedia asserts that “In 2005 a Muslim man had his son circumcised against the wishes of the child’s mother who was the custodial parent. He is reported to have been found not guilty of assault occasioning actual bodily harm by a majority verdict of the jury”, but no case reference is attached.

There is a recorded instance where the Criminal Injuries Compensation Board paid out compensation in respect of a circumcision done without the informed consent of both parents. [Re: Theodore Yorke. Source: The Independent newspaper, 22 May 1994.] Curiously this was done in the absence of any criminal conviction, giving rise to the possibility that the Board’s action may have been Ultra Vires.

Civil law.
Civil law concerning circumcision tends to be confined to Children Act cases. A good summary of the legal position regarding child circumcision is to be found here:  Re "J" (child’s religious upbringing and circumcision) [1999] 2 FCR 34. The key points to emerge from that case were:

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Late in 2016 the Danish Medical Association proposed a legal ban on circumcision of children under the age of 18, because it believed circumcision should be "an informed, personal choice" that young men make for themselves. The fact that some of these uncircumcised boys will die as a result, long before they reach the age of 18, seems to carry no weight.

This was clearly a politico-religious decision since they do appear to accept that infant circumcision has real health benefits. The government shows no sign of taking any notice.

Source: The Independent, Dec 7th 2016.

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European Union

In October 2013, the Parliamentary Assemply of the Council of Europe (PACE) Social Affairs, Health and Sustainable Development Committee approved a resolution by German rapporteur Marlene Rupperecht stating that ritual circumcision violates children's right to protect their physical integrity, and calling on member states to ban religious circumcision. PACE motions are not binding on member countries, but they are taken seriously. This led two two years of intense lobbying from both Jewish and Muslim deputies, which bore fruit on October 1st 2015 when a motion supporting freedom of religion was passed with a 73 to 6 majority.

The wide-ranging motion covered many aspects of religious freedom, but the right to circumcise was specifically endorsed. The council recommended that states require circumcisions to be performed by people trained to do so, in appropriate medical and health conditions, and that parents be informed of any medical risk to their child. Read more at the Jerusalem Post .

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Éire  (The Republic of Ireland)

On 20th November 2003 a Nigerian refugee was sent for trial in Waterford District Court following a kitchen-table circumcision with a razor blade which led to the death of a 29-day-old African boy. Osagie Igbinedion (age 30) of Ormonde House Hostel, Kilkenny, was charged with intentionally or recklessly engaging in the performance of a circumcision at 7 Summerhill Mews, Waterford, on August 17, 2003. The infant, called Callis Osaghae, later died at Waterford Regional Hospital. At trial the judge directed the jury not to bring what he called their “white western values” to bear when they were deciding this case and after deliberating for an hour and a half they found the defendant not guilty. [Source: Radio Telefís Éireann news reports, Tuesday, 04 and Friday, 07 October 2005.]

Following the death and without waiting for the trial verdict, in January 2004 the Irish Government’s Department of Health appointed a panel of experts to draw up recommendations on how the cater for the demand for circumcisions. The committee was chaired by paediatrician Professor Denis Gill. The 23-page report has received far less attention outside the Republic of Ireland than it deserves. CIRCLIST is pleased to make a copy of Professor Gill’s report available as an 84kB .pdf download. The core recommendations are that circumcisions should be confined to hospital settings unless being conducted according to established Jewish rituals - and even then, the skills and techniques of Mohelim should be subject to additional scrutiny by the government’s Health Service Executive.

Inferred but not stated in the report is that general anaesthetics are henceforth to be used for circumcisions in Irish state hospitals. (This would account for the minimum age of 6 months.) Further information is required.

The South Eastern Health Board, within whose area Callis Osaghae died, did not even wait for Professor Gill’s report. Their management team recommended that the procedure be made available forthwith at Waterford Regional hospital, on cultural and religious grounds. It is unclear whether Professor Gill’s report ever resulted in a specific legal prohibition on circumcisions in other settings or whether that matter continues to be dealt with under the more general heading of the criminal law dealing with child protection.

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In 2012, a major upheaval took place regarding the legality of circumcision in Germany. In brief, Muslim parents in Köln (Cologne) had their son circumcised and a major haemorrhage a few days later led to the boy being admitted to hospital. The parents alleged malpractice by the doctor, and the case ended up in court. The court exonerated the doctor but declared that religious circumcision was illegal. The ruling by the district court of Cologne said circumcision "for the purpose of religious upbringing constitutes a violation of physical integrity". It added: "The child's body is permanently and irreparably changed by the circumcision. This change conflicts with the child's interest of later being able to make his own decision on his religious affiliation." Source: BBC News July 13th, 2012. (The latter part is puzzling since while some religions require circumcision none, except Sikhism, prohibit it.)

The uproar that followed was all too predictable. Almost immediately Chancellor Angela Merkel announced that circumcision would not be banned, but did not explain what she would do about it. On the 21st July Germany's parliament (the Bundestag) passed a tri-partisan resolution calling for the right to circumcise to be protected, and demanding a draft law be presented by autumn. This duly happened, and on 13th December the Bundestag passed a bill confirming the legality of circumcision done with the consent of both parents. See the Religion Clause blogspot for more details.

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Since January 1st 2015, all of Norway's state-run hospitals have become legally obliged to offer circumcision of newborn baby boys. The program has, however hit opposition from doctors. In the first few weeks only a small proportion of hospitals were complying. Since the law had all-party support in Parliament it seems likely that sense will prevail. The aim was to save the children of Norway's large immigrant population from local unqualified circumcisers, but it is not restricted to religious circumcision. Read more at the

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South Africa

The Children’s Act 2005 makes the circumcision of male children under 16 unlawful except for religious or medical reasons. It also creates a statutory right for a competent child to refuse circumcision. The relevant parts of the legislation are Sections 12(8) to 12(10); the whole Act is set out in the Government Gazette dated 19 June 2006.

In a judgement delivered by the Bhisho Equality Court (High Court) on Tuesday 13 October 2009 the requirement for consent was extended to adults (the case at point having involved the forced circumcision of an adult according to traditional Xhosa rites).

The law does not seem to exclude prophylactic infant or childhood circumcision, whether to prevent AIDS or other conditions such as UTIs. According to South African correspondent SdP, routine infant circumcision is still common among English-speaking South Africans, and is becoming more common among Afrikaners, so it doesn't seem that the law was intended to prevent that. The relevant wording is "... circumcision is performed for medical reasons on the recommendation of a medical practitioner." This doesn't seem to exclude prophylaxis.

Separately, at provincial level, the legislature of the Eastern Cape Province passed a law (the Application of Health Standards in Traditional Circumcision Act 2001) to regulate traditional circumcision. Among other provisions, the minimum age for traditional circumcision in the Eastern Cape is 18 years. However, in other parts of South Africa the traditional operation happens at a younger age. The Bukusu people circumcise boys at age 12, and this ceremony still continues.

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Sweden is often cited as a country with anti-circumcision legislation applicable to male children. The following quote comes from an article by Yngve Hofvander published in The Lancet in 2002:
In Sweden, male circumcision was brought to public attention in 1966, after a foreign doctor had circumcised six Bosnian boys without anaesthetic and under unhygienic conditions. Four of these boys were later admitted to hospital. The doctor was found guilty of assault, but was later acquitted, mainly on the grounds that circumcision was a socially adequate mild assault. This case caused much public and professional indignation and became the starting point for the government to begin preparing for a law to regulate circumcision in Sweden.

After a lengthy period of debate and extensive consultation with religious, medical, medicoethical, and legal authorities, a law was passed with the following elements.

During the first 2 months of life, a lay person - a Jewish Mohel - authorised by the Board of Health and Welfare, may do the circumcision. After this age a doctor must do the circumcision. All children, even at younger than 2 months, have to have anaesthesia which must be administered by a doctor or nurse. The Board recommends anaesthetic skin cream before age 2 months, followed by infiltration anaesthesia, and, for older children, general anaesthesia or penis blockade.

Careful information has to be given by the person who will do the operation about all its features, including the method, risks, possible complications, pain, and the anaesthesia to be given, what after care is needed, and that the foreskin cannot be restored. No child must be circumcised against his will if he is able to express it. Both parents have to give their informed consent, if required, in writing.
The law described was enacted in 2001, before the prophylactic benefits of circumcision with respect to sexually transmitted diseases had been fully researched and documented. It should be noted that the legislation does not prohibit circumcision but merely regulates it. More recently, to cater for the growing Muslim population, the government has urged (but unlike Norway not required) hospitals to make circumcision freely available.

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The United States of America

The United States has a two-tier legal system involving both Federal and State law. Male circumcision is legal in all 50 States of the USA but there are variations in the way that medical malpractice suits are handled.

Divorce, custody and circumcision law - Oregon, USA
The case Boldt v Boldt (Supreme Court of the US State of Oregon) makes an interesting comparison with the English cases "Re.J" and "Gillick" mentioned above. In Oregon the custodial parent generally has the right to take medical decisions about their child without regard to objection from the divorced non-custodial parent, whereas in England and Wales any non-emergency medical proposal needs either the approval of all those with “Parental Responsibility” or an Order of the Court. In this case the parents were Russian Orthodox Christians but the father (custodial parent), post divorce had converted to Judaism and wanted the boy circumcised. His mother maintained the boy didn't want this - the father claimed that he did.

At first sight the Oregon judgement has some echoes of ‘Gillick Competence’ insofar as the Supreme Court remanded the case to the trial court to take testimony regarding the 12-year old boy’s preference. However, the Oregon court’s reason for seeking the boy’s opinion was not in furtherance of any absolute right of the child to self-determination. Rather, it was for the purposes of discovering any adverse effect that a forced circumcision might have on the boy’s relationship with his father - an effect that might disturb the custody arrangements. The case up to this point is covered in the Oregon Divorce Blog.

It took a further two years before the boy, now 14, finally gave his evidence, in chambers, to the judge. He said that he didn't want to convert to Judaism, most definitely didn't want to be circumcised, and didn't want to live with his father. The court issued an injunction that he shouldn't be circumcised and returned him to his father's custody pending arrangements to return him to his mother. At this point (2009) the trail goes cold. Alexander James Boldt must now (2017) be 22 and one hopes he hasn't suffered too much from growing up in a battleground.

Mail symbol (3218 bytes) If you come across any significant legislation or case law relating to male circumcision, please mail the Editor so that the item can be considered for inclusion on this web page. Click here to begin composing your message. Please do not use this facility to ask for legal advice. We are not lawyers, and cannot advise on legal matters.

The following resources were used in the preparation of this web page:
Globe (2409 bytes) Circlist Website logo (6480 bytes) Circlist Group logo (8847 bytes) Research by members of the CIRCLIST discussion group.
Australian flag (2258 bytes) Flag of the Aboriginal People (536 bytes) The website "FindLaw Australia", accessed 26.Oct.2009.
FindLaw Australia is a division of Thomson Reuters (Professional) Australia Limited.
Flag of the United Kingdom (1443 bytes) BMA logo (7506 bytes) Publications Department of the British Medical Association. Also court reports and newspaper articles as cited in the text.
Flag of Éire (Republic of Ireland) (263 bytes) RTE logo (2211 bytes) Irish Independent Newspaper logo (6494 bytes) Websites of the Irish government’s Health Service Executive, the state-run public service broadcaster Radio Telefís Éireann and the Irish Independent newspaper.
Flag of South Africa (1421 bytes) The Legalbrief logo (3979 bytes) The Legalbrief website  (Accessed 26.Oct.2009).
Flag of Sweden (263 bytes) The Lancet logo (2601 bytes) The Lancet, Volume 359, Issue 9306, Page 630. (16 February 2002)
Flag of the USA (1336 bytes) Flag of Minnesota (6431 bytes) Hennepin County Bar Association logo (1995 bytes) Document archive of the District Court of the County of Hennepin, Minnesota and the website of the Hennepin County Bar Association.
Flag of the USA (1336 bytes) Flag of Oregon Document archive of the Supreme Court of the State of Oregon.

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